Fifth Circuit Blog

Thursday, February 28, 2013

Prison and the Poverty Trap - Why Longer Sentences Hurt Society

The United States’ incarceration rate is the world’s highest, and the number of Americans in state and federal prisons has quintupled since 1980. This New York Times article from February 19, 2013, "Prison and the Poverty Trap," describes how social scientists are finding that the benefits of incarceration are far outweighed by the costs. While "crime may initially decline in places that lock up more people, within a few years the rate rebounds and is even higher than before." Such a rebound could result from the negative impact of incarceration on families, job prospects, future wages, and health. The online article has links to the various articles, books, and studies cited:

30-Day Forfeiture Deadline Applies to Minors

The moral of this story could be that deadlines matter and, if you miss one, ask for an extension instead of (or in addition to) arguing that the deadline doesn’t apply to you.

Claimant, the minor child of Defendant Alvarez, appealed an order of forfeiture regarding property that Alvarez agreed to forfeit in his plea agreement because it was used in furtherance of the conspiracy to distribute cocaine. The government attempted to notify the minor child and her mother of the preliminary forfeiture and the thirty days to file a claim by posting on the government’s forfeiture website and by personal service to the mother and to the grandmother. Seventy-four days after service, the mother filed a claim on the minor’s behalf. The government moved for dismissal on various grounds, including the minor’s failure to file timely, and the district court dismissed the claim.

The panel considered only the failure to file timely. It found that the government made a reasonable effort to provide the minor notice and rejected arguments that the deadline should be more flexible for minors. The panel affirmed dismissal of the minor’s claim but remanded so the judgment could be corrected to include the forfeiture as required by Federal Rule of Criminal Procedure 32.2(b)(4)(B).

The panel noted that the minor did not move to extend the deadline under Rule 6(b)(1) due to excusable neglect. Perhaps if the minor had done so, the panel would have had to address the other issue raised on appeal: whether the minor was a bona fide purchaser for value or holder of a legal interest in the property under 21 U.S.C. § 853(n).

Tuesday, February 19, 2013

Failure to Give Notice of Upward Departure Did Not Affect Substantial Rights

Zelaya-Rosales pled guilty to illegal reentry with an advisory guideline range of 0 to 6 months. At sentencing, without prior notice, the district court imposed a 6-month upward departure based on Zelaya-Rosales’s 5 previous immigration encounters and 4 prior removals. Zelaya-Rosales objected to the reasonableness of the sentence but did not object to the lack of notice.

On appeal, the panel held that the district court’s error of not giving notice did not affect Zelaya-Rosales’ substantial rights because he could not show a reasonable probability that the district court would have imposed a lesser sentence if it had given him notice. The panel emphasized that Zelaya-Rosales did not dispute the accuracy of his immigration encounters and prior removals, which were facts included in his PSR. The panel also found the 6-month upward departure was not an abuse of discretion given the district court’s individualized assessment of § 3553(a) factors and the need for deterrence.

Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.

- from an article written by Peter Keane, a former San Francisco Police commissioner, in The San Francisco Chronicle.

Both the blog and the opinion piece discuss perjury in the context of reaching quotas—so tempting to lie when the jury or judge will more likely believe the police officer than the defendant and when lying helps get those numbers.

Roussel, a New Orleans Police Department Captain and Traffic Division commander, was convicted of conspiracy and 2 counts of wire fraud involving a scheme to defraud a New Orleans-based utilities provider. Roussel’s strategy at trial seemed to be "Yeah, I was there when other people discussed defrauding the company and the related bribery scheme, but I really wasn’t paying attention to what they were saying. It was way over my head, I was bored and busy texting, and I went to the bathroom right when they were finalizing the bribery plans. Basically, I’m on the tapes, but I had no idea what was going on."

The district court included the Fifth Circuit pattern charge on "deliberate ignorance." Roussel appealed, arguing, among other things, that inclusion of the deliberate ignorance charge lowered the required from mens rea and violates Supreme Court precedent. The panel suggests that the deliberate ignorance charge should not have been given, but found that any error was harmless because "there was substantial evidence of Roussel’s actual knowledge of the illegal scheme." The panel bypassed any substantive review of the deliberate ignorance pattern language but suggested that it is consistent with the Supreme Court’s decision in Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011) because it conveys the same meaning, even though it uses different words.

With regard to sentencing, the panel affirmed the use of the public official sentencing enhancement as well as the enhancement based on Roussel’s high-level or sensitive position. The panel found the district court clearly erred, however, in finding that more than one bribe occurred for a 2-level enhancement under 2C1.1(b)(1) and in calculating the expected benefit for a 16-level increase under 2C1.1(b)(2). "[T]he district court’s calculation of expected benefit was purely speculative." The court arbitrarily relied on a previous, historically costly hurricane season to predict the benefit. If the court had relied on the hurricane season that actually applied, Roussel would have only received a 12-level enhancement.

The panel found that these sentencing calculation errors were not harmless. The district court had granted a 99-month downward variance, resulting in a 136 month sentence. The correct advisory guideline range, though, was 121-151 months instead of 235-293 months. Even though the given sentence was in the middle of the correct range, the panel could not assume that the court would not have granted a variance from the correct range. On remand, the district court will have a chance to do just that.